The Supreme Court Case Vexing Adoptive Parents Everywhere

I am an adoptive parent. My wife and I adopted our daughter nine years ago. She was born in China. We have been her parents since she was nine and a half months old, and we don't know very much about her life before we first took her into our arms. Neither does she, and it is likely that she will go through her entire life uncertain about -- though never oblivious to -- her origins.

For obvious reasons, I tend to root for the adoptive parents in the wrenching custody disputes that occasionally rise out of the family courts and into the public eye. After all, I am like them. I know them -- I know the extent of the pain that, in most cases, led them to the decision to adopt, and I know the extent of their love for their adopted child. It is a ferocious love, a love based on the need to earn the privileged right of parenthood that comes to most of humanity as a gift of nature. You tell your child that you will always be there for her. You tell your child you will never leave her. You tell your child -- and you tell yourself -- that you will fight for her as long as there is breath left in your body, even if your act of advocacy brings you into dispute with her biological parents...even if your act of advocacy ends up as a Supreme Court case with an impossibly cruel name:

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Adoptive Couple v. Baby Girl.

So I suppose I should be pleased and heartened that last week, in the matter of Adoptive Couple v. Baby Girl -- in the other big ruling affecting American families that the Supreme Court issued before the end of its term -- the Court sided with the adoptive couple. No, not against the baby child; but against the law and the lower court decisions that separated them from her.

The law is the Indian Child Welfare Act, written in 1978 to protect native families from the caprices of social workers who for many years were in the habit of distributing native children to the families and institutions -- the white families and institutions -- they deemed more deserving. The decisions came from the South Carolina state courts that allowed a member of the Cherokee tribe to reclaim, under the ICWA, the parental rights that he had relinquished.

Advocates for America's tribal nations had worried that the Court might take the opportunity to strike down the ICWA entirely, but last week only Clarence Thomas, in his concurrence with the 5-4 majority, expressed an interest in doing so. In keeping with the general approach of the Roberts Court, the majority kept the ICWA intact, but ruled that it was not applicable to a Biological Father who relinquished his parental rights when Baby Girl was four months old, and two weeks later changed his mind. It was not applicable, wrote Justice Alito, "in cases where the Indian parent never had custody of the Indian child" -- that is, in cases where the Indian family the law was designed to protect did not, in fact, exist.

It is apparently very unusual for a "family law" case to make it to the Supreme Court, and Adoptive Couple v. Baby Girl tells us why. For all the advance commentary telling us that the case was about the fate of the Indian Child Welfare Act, in the end it was really about nothing more -- and nothing less -- than the fate of an Indian Child (though Alito, in his opinion, makes sneering reference to the fact that she is only "1/256" Indian). It was really about the "Adoptive Couple," Matt and Melanie Capobianco. It was really about the "Biological Father" and the enrolled member of the Cherokee tribe, Dusten Brown. And it was really about the "Baby Girl" both sets of parents call Veronica.

She was born to Christina Maldonado, with the Capobiancos in the delivery room, and Matt Capobianco on hand to cut the cord, an honor and an intimacy that also constituted a claim. She lived with the Capobiancos, as their daughter, until she was 27 months old, whereupon the South Carolina Supreme Court ruled in Dusten Brown's favor and Dusten Brown both met her for the first time and put her in his truck and drove her to his home in Oklahoma. She was apparently happy with the Capobiancos, and now she is apparently happy with Dusten Brown and his wife. She has lived with them for 18 months, and she is no longer "Baby Girl." She is Veronica Brown, and she is Dusten Brown's daughter.

Now the Supreme Court has remanded her case back to South Carolina, where the question of who will raise her will be decided without recourse to the extra protections afforded Dusten Brown under the Indian Child Welfare Act. Perhaps this is as it should be, and should have been from the start, though I will not presume to opine here in matters of law. I will only offer my opinion as an adoptive parent who has more in common with Matt and Melanie Capobianco than I do with Dusten Brown, and who cannot view the case without wondering:

What would I do if I were them?

Of course, at first glance, the answer seems obvious. They have a chance to get Veronica back. They have a chance to hear her voice again, in a home the courts have condemned to silence. They have a chance to restore their rights. They have a chance to undo what they regard as a primal injustice, and come to the courts afresh, and to be considered not as accessories to some vast historical crime but rather as the parents -- by all accounts good and capable and devoted and loving -- of a little girl who once called them Mommy and Daddy. The case will now be decided "in the best interests of the child," as the saying goes, and they now have no choice but to keep fighting for what they perceive as the child's best interests, and their own. It is how they will live up to the promise they made to her when they first called her their daughter, and how they will prove that they have been her parents, all along and forever.

But they are not her parents anymore, and not just by the whim of the courts. The special agony of the dispute between the Capobiancos and Dusten Brown derives from the fact that Dusten Brown will always be Veronica's biological father but that the Capobiancos will only be her adoptive parents if they prevail in the protracted court proceedings that are sure to ensue.

They have said, and the Supreme Court has agreed, that ICWA should not have been invoked to restore the parental rights of Dusten Brown. But now that the outcome of the case rests on "the best interests of the child," the legal and moral principles are entirely different. Veronica is now nearly four years old, and apparently lives in a stable household with her biological father. How can the moral justification of adoption itself -- which is, after all, the justification of need -- be invoked to separate her, once again, from the people she calls her parents, and return her to the Capobiancos?

As I've said, I feel like I know the Capobiancos. They are my tribe, and I know that they will keep on fighting against a man who decided that he wanted to be a father only after he found out that his daughter was not going to be raised by her birth mother but rather by an "Adoptive Couple." They will keep on fighting, in part to let "Baby Girl" know that she is worth fighting for, to the last breath. As an adoptive parent, I would do the same thing. I would especially bridle at anyone who counseled me to adopt another child, because adoption rests on the acceptance of permanence -- the understanding that the child you adopt is your child, and is fused to you for good.

But as an adoptive parent, I also understand what the breaking of parental bonds does to a child. And so as an adoptive parent, there's also a part of me that hopes the Capobiancos make the decision by which Solomon is said to have understood that the mother who declined to split a contested baby asunder was the baby's real mother, whether by blood or simply by the force of her love.

They have already demonstrated that they love Veronica enough to fight for her. In the best interests of the child, they should -- someone should -- demonstrate that they love her enough to stop.